Petition for Writ of Certiorari — Glendale Union High School District v. Lutz

In The

SUPREME COURT OF THE UNITED STATES

GLENDALE UNION HIGH SCHOOL DISTRICT,

Petitioner,

V.

CLAUDETTE LUTZ,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

CHARLES L. FINE

LITTLER MENDELSON, P.C.

Camelback Esplanade

2425 E. Camelback Road

Suite 900

Phoenix, Arizona 85016

(602) 474-3600

Counsel for Petitioner

—_—---—

QUESTIONS PRESENTED FOR REVIEW

Whether a determination that an individual is

substantially limited in a major life activity may be based

solely on evidence of the degree of the impairment following

the individual’s termination from employment that was not

available to the employer at the time the adverse

employment action was taken.

Whether an individual attempting to establish that she

was substantially limited in a major life activity must offer

evidence that she was significantly restricted in the activity

as compared to an average person in the general population.

PARTIES TO THE PROCEEDINGS BELOW

Claudette Lutz, Respondent herein, filed the

underlying civil actions in this matter.

Petitioner is not a publicly held company. Petitioner

does not have a parent corporation.

Petitioner Glendale Union High School District No.

205 (hereinafter referred to as “Petitioner” or “Glendale’’)

respectfully requests that a writ of certiorari be issued to

review the judgment of the United States Court of Appeals

for the Ninth Circuit.

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ...................... i

PARTIES TO THE PROCEEDINGS BELOW............... ii

CITATION OF THE UNOFFICIAL REPORTS

OF OPINIONS AND ORDERS .....0..0.......c0cccccccccee eee eeeeees l

i ssiniibinuasion 1

STATEMENT OF JURISDICTION ......0...00..00000000000000000.. 1

STATUTORY PROVISIONS INVOLVED ..................... 2

ee MU TIES GIT ccccccccccccsecscescaccccscccnessesosecnes 2

i a samamauenunininens 2

TT cad ccirsaeiensentnicantneeneesecctnodettions 5

Existence Of Jurisdiction Below ............................ 6

THE COURT OF APPEALS' DECISION

CONFLICTS WITH THE DECISIONS OF

OTHER COURTS OF APPEALS ON AN

IMPORTANT QUESTION OF FEDERAL LAW .......... 6

THE COURT OF APPEALS' DECISION

EFFECTIVELY DECIDED AN IMPORTANT

QUESTION OF FEDERAL LAW INA

MANNER IN CONFLICT WITH SEVERAL

SSNS REI os Ne 13

I ueemiabinus 18

APPENDICES

APPENDIX A

Opinion, United States Court of Appeals for the

I ctbrsicescssscbittciiaseusaieciilscaiphaiaa iaeaieieiiileinabeekiies la

APPENDIX C

Relevant Statutory Provisions .................sssccesssceeeeeeeees 23a

TABLE OF AUTHORITIES

Federal Cases

Page(s)

Pritchard v. Southern Co. Serv., 92 F.3d 1130, 1133

SN i ciiiiiioctidnenibaistcateanae meee reeks 7

EEOC V. Sears Roebuck & Co., 233 F.3d 432, 438

I I i isvoientiteiceeceicaeae Mes eo oie 7

Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 884

age, AUR SRD ee en OREN CT ORATOR Site OP 7,9

Burch v. Coca-Cola Co., 119 F.3d 305, 315

PG aii es oe 7,8

Kalekiristos v. CTS Hotel Management Corp., 958 F. Supp.

OE a Barr ikiaiaihictadstssectiniasastiniasnstchaciineiisabiibisdiindiasnbsiabs 8,9

Eber v. Harris County Hosp. Dist., 130 F. Supp. 2d 847,

PE A BUN, UE Bisanitlicinsdihinssiilaisaliiasipialigiatiatdnitcaniasshchbiiinla 8

Fagan v. United Int'l Ins., 128 F. Supp. 2d 182

READE Es Bi eientiidbincinikticiiisiithinanaidibaibaiininniicleaienitilie 8,9

Leicht v. Hawaiian Airlines Inc., 77 F. Supp. 2d 1134

CEPA, FO TE ccinicisiniccspsiionestieniesttl aidiscnecttlaiicsboniaiiist. 8

Lance v. University of Tennessee, 60 F. Supp. 2d 773, 776

RAs, HAMM, BORO Mis sncinscncnsissicncipsDhalsaiiigelstianhietlkesabnidsdiladastianidieca 8

Meekison v. Voinovich, 17 F. Supp. 2d 725, 730

ED. CO TD sciisin sic dasiceittethinpnteeiiitiidisdtciiartctaiayipicnanichtasss 8

Adams v. Rochester Gen. Hosp., 977 F. Supp. 226, 232

CRIES, CI vicincidouinsbagiaet canes 8

Boren v. Wolverine Tube, Inc., 966 F. Supp. 457

GR A: BIG Pacccevenscnnscnnrnsssncctsnininibieinteiahiiceateniainninianainiipheind 8

Dikcis v. Nalco Chemical Co., 974 F. Supp. 669, 673-674

ee BR eT 8

Parker v. Metropolitan Life, Ins. Co., 875 F. Supp. 1321,

SD CUP a. UR: EOI exectecerenenseieninnsininniieeniiligpilabbcibapibensain 8

Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) ... 12, 14

Gonzales v. National Bd. Of Med. Exam'rs, 225 F.3d

CIO F* Ch. TD iasciiesistniinicctlcecincmibiteailadite ait ia 14

Albertsons, Inc. v. Kirkingburg, 525 U.S. 555 (1999)......... 14

Doyal v. Oklahoma Heart, Inc., 213 F.3d 492, 497

C00” Gls: SII enctitstesienatdieede 14

Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16

(2 Gl, 10D inicinicinnninialae eens 14

Maynard v. Pneumatic Products Corp., 233 F.3d 1344

ChE Cn: I a acticsinnsseanicatieaiaeaeincere 14

Moore v. J.B. Hunt Transp., Inc., 221 F.3d 944

CFP ie, Fe itiitcinvtitimeiinaiacea eee ee 15

Kelly v. Drexel University, 94 F.3d 102, 105

(Fe, CI encectiicerceaeee 15

Penny v. United Parcel Serv., 128 F.3d 408, 415

Pe Si dhddcdiititae 16

Talk v. Delta Air Lines Inc., 165 F.3d 1021, 1025

gk aOR By RROD otc ne eee bere tee 16

Colwell v. Suffolk County Police Dept., 158 F.3d 635,

GAA (08 Clr, 190) scan csencasnnnseensoorensonrnesernneeensnesnnssnste 16

Statutes and Rules

GE ULEE: 6 GIN haiti itlcceiesiscscscntirtnttines 2

29 C.F.R. pt. 1630 app., § 1630.2(j) .....ccceccseessees 2,13, 14n.4

ee Aa ORG TONE To oO 5

I Aeiibiesticeciseleciteisnsinieitttinercicineaet 5

ea RSET MR TO 6

ne es RET RA RO AEE TRON EIR 6

Ie Bi ihaicichechietainsiecsiosceietietaieeaiion 13

I Fi ieieiinssnkitcccncietcetinaces 13, 14.5

vii

CITATION OF THE UNOFFICIAL

REPORTS OF OPINIONS AND ORDERS

Neither the judgment of the Ninth Circuit Court of

Appeals nor the ruling by the limited States District Court

for the District of Arizona are officially cited or published.

Their citations are:

Court of Appeals No. 99-17410

District Court No. CV-98-01076-EHC

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Ninth Circuit is reported as Claudette Lutz v. Glendale

Union High School District No. 205, et al., No. 99-17410

and is set forth in Appendix A.

The opinion of the United States District Court for

the District of Arizona in Claudette Lutz v. Glendale Union

High School District No. 205, et al., D.C. No. CV-98-01076,

which was reviewed by the Court of Appeal is unpublished

and set forth in Appendix B.

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals

for the Ninth Circuit was entered on April 20, 2001.

The jurisdiction of this Court is invoked under Title

28 of the United States Code, section 1254(1), and Rule 13

of the Supreme Court of the United States.

STATUTORY PROVISIONS INVOLVED

The relevant provisions of the Americans With

Disabilities Act [42 U.S.C. § 12101 et seq.] (hereinafter

“ADA”) are set forth in Appendix C.

The relevant provisions of the Equal Employment

Opportunity Commission (hereinafter “EEOC’”) interpretive

guidelines for the ADA [29 C.F.R. pt. 1630 app., §

1630.2(j)] are set forth in Appendix C.

STATEMENT OF THE CASE

STATEMENT OF FACTS

Respondent Claudette Lutz (hereinafter

“Respondent”) is a former employee of Glendale, a public

school system with nine high schools in the cities of

Glendale and Phoenix, Arizona. Respondent was one of the

assistant principals at Thunderbird High School (hereinafter

“Thunderbird”). Respondent alleges that Glendale violated

the Americans With Disabilities Act (“ADA”) by

terminating her employment.

Glendale had employed Respondent since 1972 and

since 1983 she had been an Assistant Principal at different

high schools. Her most recent assignment was the Assistant

Principal of Student Services at Thunderbird. Her immediate

supervisor was the school’s Principal, Jennifer Johnson

(hereinafter “Johnson”). Respondent disliked and did not get

along with Johnson. She also did not get along with various

counselors and administrators. There was rancor between

Respondent and Johnson and had been for the last couple of

years Respondent worked at Thunderbird. Because of her

strained relationships with Johnson and other personnel,

Respondent began to feel work-related stress.

The Superintendent, James Kieffer (hereinafter

“Kieffer”) and the Assistant Superintendents were aware of

the rancor and rifts between Respondent and Johnson and

between Respondent and certain personnel, which were

negatively affecting her effectiveness. | Respondent’s

problems with Johnson caused Kieffer to meet with

Respondent in early May 1997. Prior thereto, in April 1997,

Respondent submitted a written request to Superintendent

Kieffer for a promotion to a principalship. Because of the

situation at Thunderbird, and the conclusions that

Respondent’s relationship with Johnson was irreparable and

she was no longer effective, Respondent was scheduled for

reassignment. She was scheduled to transfer to Washington

High School.

Respondent had been afflicted with diabetes for a

number of years. Her diabetic condition was known to

Johnson and District administrators. Her diabetic condition

had not, however, affected her ability to perform the

necessary duties, functions and responsibilities of the job.

Respondent had never claimed that the diabetes kept her

from doing her job nor asked to be given an accommodation

to do her job. To the contrary, Respondent had not missed a

day of work in over six months. In addition, Respondent had

applied for a promotion to another position in another

school, which proved to Kieffer that she was fully able to

perform her job and her diabetic condition would not have

any application.

In her June 4, 1997 meeting with Kieffer regarding

her transfer, Respondent became angry and proceeded to

argue with him. She stated that the reassignment could cause

a worsening of her diabetes and asked that the reassignment

be rescinded. After arguing and asking to stay at

Thunderbird, she said she had only one year left before she

was eligible for retirement. In response, Kieffer offered her

3

a teaching position for the time until her retirement, which

she rejected. With regard to accommodation, it was pointed

out that due to her dislike of and problems with her principal

and other Thunderbird personnel, the transfer to Washington

was for her betterment.

After accepting the fact that the transfer would go

forward, Respondent was given a set of directives to follow.

Respondent violated these instructions and directives.

Shortly thereafter, at a meeting of all the faculty and

administrators for Thunderbird, Respondent spoke before the

assemblage and said, among other things, that the transfer to

Washington was one of the worst things that had ever

happened to her. She said:

I had a friend who was killed in

Vietnam; I was diagnosed with spina

bifida so I could not have children; I

saw my father in a body bag; and now

this transfer to Washington. I wish

instead of throwing a football [at the

Superintendent], I wish I had thrown a

hand grenade.!

The audience was shocked by her statement and it

immediately received notoriety throughout the District,

including Washington High School. Her conduct amounted

to gross insubordination.

Kieffer asked Respondent to meet with him and

explain her actions. She defended each of her actions

(refusal to carryout the directives and the statement to the

assemblage) as being reactions to a negative employment

' The “football” statement was a reference to a “Faculty Farce” that took

place in March 1997 in which Respondent, as part of a skit, threw a

football at Kieffer who was seated in the audience.

4

transaction. She made no meaningful attempt to apologize

for her actions or conduct. She again requested, however, to

have the transfer rescinded until she could stabilize her

diabetic condition. Kieffer again offered her the opportunity

to teach or to be reassigned as an administrator at the North

Annex, a very easy job, at the same salary and until she was

eligible for retirement. Respondent rejected these offers. As

a result, June 13, 1997 was her last day of work. On August

19-20, 1997, a termination hearing was held pursuant to the

termination and hearing procedures set forth in the Arizona

statutes, A.R.S. § 15-339, et seq. After hearing testimony

and evidence, which included Respondent’s presentation of

testimony, evidence and medical documentation about her

diabetic condition, the Glendale Board of Education voted

unanimously to terminate her.

PROCEEDINGS BELOW

This case involves an action filed by Respondent, in

Superior Court of Maricopa County on May 12, 1998.

Glendale removed this action to the United States District

Court for the District of Arizona on June 24, 1998, on the

basis of federal question jurisdiction pursuant to Title 28,

United States Code, section 1331.

On September 23, 1999, the District Court granted

Glendale’s motion for summary judgment. The District

Court dismissed Respondent’s state tort and contract claims,

§ 1983 claim and her ADA claim. With respect to her ADA

claim, the District Court found that Respondent had failed to

establish that she is a qualified individual with a disability

within the meaning of the ADA. See Appendix C.

Specifically, the District Court concluded that there was no

evidence that Respondent had a substantially limiting

impairment.

A timely Notice of Appeal from the Judgment of the

District Court was filed by Respondent on or about October

22, 1999. However, Respondent did not challenge on appeal

the District Court’s decision insofar as it dismissed her state

tort and contract claims and her § 1983 claim. The only

ruling that Respondent appealed was the dismissal of her

ADA claim.

On April 20, 2001, the Court of Appeals issued its

Memorandum decision reversing the District Court. See

Appendix A. The Court of Appeals concluded that the

District Court erred in finding, as a matter of law, that

Respondent is not a qualified individual with a disability

within the meaning of the ADA. Specifically, the Court of

Appeals found that there is a triable issue of fact as to

whether Respondent is substantially limited in the major life

activity of walking.

EXISTENCE OF JURISDICTION BELOW

The District Court had jurisdiction over the federal

claims alleged by Respondent’s Complaint hereinbelow

under Title 28, United States Code, sections 1331, 1441(b)

and 1446. The Court of Appeals had appellate jurisdiction

under Title 28, United States Code, section 1291.

THE COURT OF APPEALS’ DECISION CONFLICTS

WITH THE DECISIONS OF OTHER COURTS OF

APPEALS ON AN IMPORTANT QUESTION OF

FEDERAL LAW.

This petition for a writ of certiorari should be granted

because the Ninth Circuit Court of Appeals’ Opinion

conflicts with the decisions of other courts of appeals

concerning the proper time frame for measuring whether an

individual is substantially limited in a major life activity.

6

CL ee ee Ee TE Og ee ee Se oe -

The Eleventh, Seventh, Sixth and Fifth Circuit Courts of

Appeals, as well as many district courts, have held that when

measuring an impairment to determine whether it is

substantially limiting, courts must focus on evidence of the

impairment prior to the date on which the employee

requested an accommodation. The time-period is restricted

so that only evidence that would have been available to the

employer at the time it made the adverse employment action

is considered. The Ninth Circuit Court of Appeals, on the

other hand, based its decision that Respondent has a

substantially limiting impairment on evidence regarding the

degree to which Respondent was impaired over a year after

she had been removed from working. By doing so, the

Appellate Court has created a conflict with the Eleventh,

Seventh, Sixth and Fifth Circuit Courts of Appeals as to

whether such post-termination (or post-adverse action)

evidence may serve as the basis for a court’s ruling even

though the employer itself would not have had the benefit of

such evidence.

The following courts have held that in order to

prevail on a claim of disability discrimination, a plaintiff

must prove that she had a substantially limiting impairment

at the time of the discriminatory act. See Pritchard v.

Southern Co. Serv., 92 F.3d 1130, 1133 (11" Cir.), amended

on other grounds on reh’g, 102 F.3d 1118 (11" Cir. 1996),

cert. denied, 520 U.S. 1274 (1997) (court focused its

inquiry on whether there was sufficient evidence that

employee had a substantially limiting impairment “at the

time of her termination”); EEOC v. Sears Roebuck & Co.,

233 F.3d 432, 438, (7" Cir. 2000) (the progression of an

impairment following an individual’s termination from

employment may be viewed as a factor but is not

determinative); Kocsis v. Multi-Care Management, Inc., 97

F.3d 876, 884 (6" Cir. 1996) (in order to recover on an ADA

claim, the plaintiff must first establish as part of her prima

7

facie case that she had a disability “at the time of the

discriminatory act.” (emphasis in original)); Purch v. Coca-

Cola Co., 119 F.3d 305, 315 (5™ Cir. 1997), cert. denied 522

U.S. 1084, 118 S.Ct. 871 (1998) (citing Pritchard, 92 F.3d at

1133) (“[A]n impairment must be substantially limiting ar

the time of the requested accommodation.”) (emphasis in

original); Kalekiristos v. CTS Hotel Management Corp., 958

F. Supp. 641 (D.D.C. 1997), aff'd 132 F.3d 1481 (D.C. Cir.

1997); Eber v. Harris County Hosp. Dist., 130 F. Supp. 2d

847, 858 (S.D. Tex. 2001); Fagan v. United Int'l Ins., 128 F.

Supp. 2d 182 (S.D.N.Y. 2001); Leicht v. Hawaiian Airlines

Inc., 77 F. Supp. 2d 1134 (D.C. Hawaii 1999); Lance v.

University of Tennessee, 60 F. Supp. 2d 773, 776 (E.D.

Tenn. 1999); Meekison v. Voinovich, 17 F. Supp. 2d 725,

730 (S.D. Ohio 1998); Adams v. Rochester Gen. Hosp., 977

F. Supp. 226, 232 (W.D.N.Y. 1997); Boren v. Wolverine

Tube, Inc., 966 F. Supp. 457 (N.D. Miss. 1997); Dikcis v.

Nalco Chem. Co., 974 F. Supp. 669, 673-674 (N.D. Il.

1997); Parker v. Metropolitan Life Ins. Co., 875 F. Supp.

1321, 1326 (W.D. Tenn. 1995). To determine if there was a

substantially limiting impairment at the time of the

discriminatory act, courts necessarily focus on evidence

submitted regarding the degree of the impairment in the

period leading up to the discriminatory act.

In Kocsis, after summarizing a Plaintiff's burden to

establish that a disability existed as of the date of the adverse

employment action, the Sixth Circuit Court of Appeals

reversed the district court’s decision because it had relied on

evidence of the plaintiffs condition following her

termination:

The district court found that [the

plaintiff] could satisfy the “disability”

requirement for purposes of

establishing her prima facie case

8

because she was “presently under a

diagnosis of [multiple sclerosis].” That

premise is erroneous, however,

because [the plaintiff] must establish

that her disability existed at the time

of the discriminatory act.

97 F.3d at 884 n.13 (emphasis in original,

citations omitted).

In Kalekiristos, (a case affirmed by the Court of

Appeals for the District of Columbia) the court held as

follows:

reports about which the defendant had

absolutely no knowledge nor access to

prior to terminating the plaintiff can

not serve as the sole evidentiary basis

of establishing an element of a prima

facie case of disability discrimination.

A person alleging a disability

protected by the ADA has a burden of

establishing with medical evidence the |

existence of the alleged disability, and

presenting documentation during the

term of employment, not following

termination.

958 F. Supp. at 657.

The district court in Fagan found that the plaintiff

had “produced no evidence that he had anything more than a

temporary ailment at the time of his employment and,

consequently, had not met his burden of proving that his

injury qualified as a disability under the ADA.” 128 F.

Supp. 2d at 185-186. In reaching its finding, the court

9

determined that post-termination medical reports “were

irrelevant as to the issue of whether plaintiff suffered a

disability at the time of his employment.” /d. at 186 n.2.

Likewise, the court determined that evidence of a

handicapped parking permit that was issued seven months

after plaintiff's termination “cannot serve as the basis of [the

plaintiff's] claim to a disability.” Jd.

In the present case, on the other hand, the Ninth

Circuit Court of Appeals relied exclusively on evidence of

Respondent’s impairment after her employment with

Petitioner had ended. First, the Appellate Court relied on an

affidavit of Respondent that she signed on July 31, 1998,

over thirteen months after she was no longer working and

almost one year after her termination and in which she

testified to her condition on the date of signature. The

affidavit states in pertinent part (1.e., the part quoted and

relied on by the Ninth Circuit in its Memorandum decision):

If I work in the yard for any length of

time, I will have a low blood sugar

reaction and my mother whom I live

with has to continually check on me in

the yard to make sure that I have not

passed out. I do very little work

around the house, as vacuuming and

mopping of the home and other

physical activities causes me to have

low blood sugar and therefore I do not

do these activities now more than one

time every couple of months at most.

I am very limited in my ability to do

these things. |

10

a ee ee a ee ee eee ee Mee

Based on this written statement, made in the present tense

and signed almost a year after Respondent was terminated,

the Ninth Circuit Court of Appeals found as follows:

[Respondent’s] own affidavit indicates

that even light physical activity,

including “walking for any distance

[such as to] grocery shopping” and

working around the house, such as

vacuuming, mopping and yard work,

“causes me to have low blood sugar

and therefore I do not do these

activities more than one time every

couple of months at most.”

See Appendix A, page 2. Furthermore, based on

Respondent’s affidavit, the Appellate Court concluded that

“[t]he evidence in the record is sufficient to support a finding

that [Respondent] cannot walk for even a minimal distance

more than one time every couple of months.” See Appendix

A, pages 3-4.

Additionally, the Ninth Circuit stated that the

affidavit of Respondent’s doctor confirms her reported

difficulties with walking. Like Respondent’s affidavit,

however, her doctor’s affidavit was signed nearly ten months

after Respondent’s termination from employment.

Moreover, the affidavit does not even mention the word

walking, let alone state that Respondent had difficulties

walking during the period of her employment. Likewise, the

doctor’s letter used at her termination hearing made no

mention of any difficulty whatsoever about walking.

? This contradicts the 38 pages of medical evidence submitted by

Respondent at her termination hearing. No record expresses her inability

to walk; to the contrary, she underwent a 5-minute, 29-second exercise

treadmill test without any problem in February 1997.

11

Nevertheless, based entirely on such after-the-fact

evidence, the Ninth Circuit held: “This evidence is sufficient

to support a finding that [Respondent] is substantially limited

in the major life activity of walking.”? See Appendix A,

page 3. This finding is against the overwhelming weight of

the evidence in the record for the period of time the

Respondent was working.

By basing its decision on evidence of Respondent’s

condition over a year after she was through working, the

Ninth Circuit Court of Appeals effectively rejected the

decisions of the Eleventh, Seventh, Sixth and Fifth Circuits

that requires a plaintiff to demonstrate the existence of a

substantially limiting impairment at the time of his/her

employment. If the Ninth Circuit had focused its inquiry to

the pre-termination evidence of Respondent’s impairment, it

undoubtedly would have affirmed the district court’s grant of

summary judgment because there is no evidence that

Respondent had a substantially limiting impairment during

the period of her employment.

Now, Respondent calls upon this Court to resolve the

question whether post-termination evidence about which an

employer did not and could not have had knowledge of prior

to terminating the plaintiff can serve as the sole evidentiary

basis for establishing an element of a prima facie case of

disability discrimination. This Court’ decision in Sutton v.

United Air Lines, Inc., 527 U.S. 471 (1999), suggests that it

cannot: “Because the phrase ‘substantially limits’ appears in

the Act in the present indicative verb form, we think the

language is properly read as requiring that a person be

> The Court of Appeals also pointed to the fact that the District Court

noted that Respondent's blood sugar levels “affected her . . . walking”

and her medical records “confirm her reported difficulties with walking.”

See Appendix A, pages 2-3.

12

presently — not potentially or hypothetically — substantially

limited in order to demonstrate a disability.” Jd. at 482.

However, because the Court has not squarely addressed the

issue, Respondent respectfully requests that the Court do so

now. »

THE COURT OF APPEALS’ DECISION

EFFECTIVELY DECIDED AN IMPORTANT

QUESTION OF FEDERAL LAW IN A MANNER IN

CONFLICT WITH SEVERAL CIRCUIT COURTS

In order to be considered a qualified individual with a

disability, a plaintiff must establish that she has a physical or

mental impairment that substantially limits one or more

major life activity. 42 U.S.C. § 12102(2)(A). Although the

ADA does not define “substantially limits”, the EEOC has

issued interpretive guidelines (hereinafter “EEOC

regulations”) that explains the term. 29 C.F.R. pt. 1630 app.,

§ 1630.2(j). The regulations provide that an individual is

substantially limited in a major life activity if she is:

(i) unable to perform a major life

activity that the average person in the

general population can perform; or

(ii) significantly restricted as to the

condition, manner or duration under

which an individual can perform a

major life activity as compared to the

condition, manner or duration under

which the average person in the

general population can perform that

same major life activity.

29 C.F.R. § 1630.2(j).4

* In addition, the regulations provide that the “nature and severity of the

impairment,” the “duration or expected duration of the impairment,” or

13

This Court has pointed out that “[nJo agency...has

been given authority to issue regulations implementing the

general applicable provisions of the ADA.” Sutton, 527 U.S.

at 479. Nevertheless, several United States courts of appeals

have sanctioned courts’ reliance upon — and in some cases

have compelled parties’ compliance with — the EEOC

regulations. See, e.g., Gonzales v. National Bd. Of Med.

Exam’rs, 225 F.3d 620 (6" Cir. 2000) (comparing

appellant’s abilities with abilities of average person in

general population); Doyal v. Oklahoma Heart, Inc., 213

F.3d 492, 497 (10" Cir. 2000)(“Because [appellant]

introduced no evidence suggesting she experienced greater

difficulty than anybody else learning the new computer

system or any other new material, she has failed to

demonstrate that she was significantly restricted in

learning.”); and Soileau v. Guilford of Maine, Inc., 105 F.3d

12, 16 (1 Cir. 1997) (“Impairment is to be measured in

relation to normalcy, or, in any event, to what the average

person does.”’).

Furthermore, several United States courts of appeals

have specifically upheld the requirements set forth in the

EEOC regulations where the major life activity at issue is

walking.” For example, in Maynard v. Pneumatic Products

Corp., 233 F.3d 1344 (11™ Cir. 2000), the appellant argued

that he was substantially limited in the major life activity of

walking because his back injury restricted the duration,

manner or condition under which he could perform the major

life activity. Jd. at 1347. The Eleventh Circuit Court of

“the permanent or long term impact, or the expected permanent of long

term impact of or resulting from the impairment” are to be considered.

29 C.F.R. § 1630.2(j). This Court has adopted this section of the

regulations. Albertsons, Inc. v. Kirkingburg, 525 U.S. 555 (1999).

* The EEOC regulations include walking as a major life activity. 29

C.F.R. § 1630.2(i).

14

Appeals rejected the appellant’s claim, holding: “[t]o sustain

his burden of proof, [appellant] needed to prove that his

ability to walk is significantly restricted as compared to the

average person in the general population. This [appellant]

did not do.” Jd. at 1347-1348. (emphasis in original). The

appellate court defined the crucial role of the regulations as

follows: ;

[T]he claimant must present sufficient

evidence of the significant restriction

before the court may turn the issue

over to the trier of fact. This evidence

must include information regarding

the abilities of the average person in

the general population. [Appellant]

proffered no evidence on this point,

and thus failed to make out a prima

facie case.

Id. at 1349.

Similarly, the EEOC regulations recently played a

pivotal role in a Seventh Circuit decision. Moore v. J.B.

Hunt Transporiation, Inc., 221 F.3d 944 (7" Cir. 2000). In

rejecting the appellant’s claim that his rheumatoid arthritis

substantially limited his ability to walk because it affected

the “rate and pace” of his activities (as opposed to his ability

to perform them), Appellant admitted that he could walk

distances of less than a mile consistently and could even

walk a mile if he paid attention to what he was doing. The

Seventh Circuit rejected his claim, holding: “We do not

believe that these limitations constitute significant

restrictions cn [appellant’s] ability to walk when compared

with the ability of the average person... .” Jd. at 951.

15

Moreover, in Kelly v. Drexel University, 94 F.3d 102,

105 (3™ Cir. 1996), the Third Circuit Court of Appeals

quoted the regulations and then held that “the question

presented is whether [the plaintiff] adduced sufficient

evidence from which a factfinder reasonably could conclude

that the nature and severity of his injury significantly

restricted his ability to walk as compared with an average

person in the general population.” See also Taylor v.

Pathmark Stores, Inc., 177 F.3d 180, 186 (3d Cir. 1999)

(“there was no testimony that [appellant] stands or walks,

during the fifty minutes per hour that he can, with any less

ability than the average person.”’).

Relying on the Third Circuit’s decision in Kelly, the

Sixth Circuit Court of Appeals held that the plaintiff failed to

demonstrate that he is disabled within the meaning of the

ADA and the regulations. Penny v. United Parcel Serv., 128

F.3d 408, 415 (6™ Cir. 1997) (quoting Kelly, 94 F.3d at

105). The appellate court found that “[a]lthough the record

clearly indicates that [plaintiff] suffers an impairment that

affects to some degree his ability to walk, he has not

‘adduced sufficient evidence from which a factfinder

reasonably could conclude that the nature and severity of his

injury significantly restricted his ability to walk as compared

with an average person in the general population.’” Penny,

128 F.3d at 415.

In Talk v. Delta Air Lines Inc., 165 F.3d 1021, 1025

(5" Cir. 1999), the appellant asserted that she walked with a

limp and moved at a significantly lower pace than the

average person. Nevertheless, the Fifth Circuit Court of

Appeals found that “although [appellant] experiences some

impairment to her ability to walk, it.does not rise to the level

of a substantial impairment as required by the ADA.” Jd.

16

In Colwell v. Suffolk County Police Dept., 158 F.3d

635, 644 (2d Cir. 1988), cert. denied, 526 U.S. 1018 (1999),

the Second Circuit Court of Appeals quoted the regulations

and held: “the evidence was insufficient to support the

finding that any of the officers’ impairments were

substantial, particularly when evaluated in light of the first

EEOC factor: ‘the nature and severity of the impairment’ as

compared with the average person’s ability to perform those

activities.” 4

In the present case, on the other hand, Respondent

offered no evidence whatsoever of her ability to walk as

compared to the ability of an average person in the general

population. Respondent’s failure to offer such evidence did

not present the Ninth Circuit Court of Appeals from

overruling the district court’s decision and finding in

Respondent’s favor. Although Petitioner quoted the EEOC

regulations, which call for such comparative evidence, in the

brief it filed with the Appellate Court, the court did not

comment on Respondent’s failure to provide any such

evidence.

Respondent respectfully requests that the Court settle

the question whether courts are bound by the EEOC

regulations defining a substantial limitation in rendering

decisions in ADA cases. Specifically, Respondent seeks this

Court’s guidance as to whether a plaintiff attempting to

establish that he/she is substantially limited in a major life

activity must offer evidence of his/her impairment as

compared to an average person in the general population.

17

CONCLUSION

For the reasons expressed hereinabove, Petitioner

Glendale Union High School District respectfully requests

that its petition for a wnt of certiorari be granted.

Respectfully submitted,

bi Aran.

CHARLES L. FINE

LITTLER MENDELSON, P.C.

Camelback Esplanade

2425 E. Camelback Road, Suite 900

Phoenix, Arizona 85016

(602) 474-3600

Counsel for Petitioner